Kim Gardner disqualified from prosecuting Mark McCloskey

Readers will recall that Mark McCloskey and his wife Patricia pointed guns at BLM protesters outside their home in St. Louis last July, and that Kim Gardner, the incompetent left-wing St. Louis circuit attorney, decided to prosecute the McCloskeys. But thanks to a ruling by a St. Louis judge, Gardner will not be allowed to prosecute Mark McCloskey; nor will her office be permitted to do so.

The reason? Gardner exploited the McCloskeys in fundraising emails during her reelection campaign.

Circuit Judge Thomas Clark II found that two of Gardner’s fundraising emails raise the appearance that she “initiated a criminal prosecution for political purposes.” The emails, said Clark, were “tailored to use the June 28 incident [involving the McCloskey’s] to solicit money by positioning her against defendant and her more vocal critics.”

I believe Gardner’s decision to prosecute the McCloskey’s was ideologically based, not the product of a desire to raise funds. However, she did drag the McCloskeys into her fundraising effort, albeit not by name.

The first email, sent before Gardner pressed charges against the McCloskeys, states in relevant part:

You might be familiar with the story of the couple who brandished guns during a peaceful protest outside of their mansion. Well, today the Governor of Missouri weighed in, telling the press:

President Trump understands the situation in. . .St. Louis and how out of control it is for a prosecutor to let violent criminals off. . .and try to attack law abiding citizens.

Instead of fighting for the millions of Americans affected by the pandemic. . .President Trump and the Governor are fighting for the two who pointed guns at peaceful protesters during the Black Lives Matter protests. . . .

Kim needs your help to fight back. And right now she’s under national security from our divisive president, the Republican establishment of Missouri, and the right-wing media. . . .

Will you show Kim you stand with her and rush a donation today?

St. Louis will have an opportunity to re-elect progressive circuit attorney Kim Gardner, who time and again has shown she isn’t afraid to stand up and hold those accountable who are perpetuating a system of systemic racism and police brutality.

(Emphasis in original)

The second email, sent after the decision to prosecute was announced, states with regard to that prosecution:

In the last 24 hours, there has been a lot of national attention surrounding Kim’s decision to press charges against a couple that brandished guns at a peaceful Black Lives Matter protesters. For merely doing her job, Kim has received death threats, been attacked by Donald Trump, and berated by Missouri’s Governor, Senator and Attorney General.

This is what happens when leaders like Kim stand up against a system that elevates the privileged and powerful.

Does this kind of language warrant disqualification of a prosecutor? I don’t know.
Clearly Gardner, in addition to exploiting her unpopularity with President Trump and others, was exploiting the McCloskey situation, even though she didn’t mention their names.

However, the first email doesn’t say the McCloskeys will be prosecuted. Does it imply this? Maybe.

The second email touts the decision to prosecute the McCloskeys. However, I imagine that other prosecutors running for office point to cases they have brought against defendants or types of defendants who are unpopular in the community. That seems like fair game.

Frankly, I don’t know the law in this area well enough to say whether Judge Clark made the right decision.

In any event, the decision will have a salutary consequence. It means that another, presumably less ideologically contaminated, prosecutor’s office will take a fresh look at the case and decide whether prosecution is warranted.

Judge Clark’s decision applies only to Mark McCloskey. The case against his wife is before another judge. A motion to disqualify Gardner and her office is pending in that case.

Missouri’s governor has already said he will pardon the McCloskeys if they are convicted. A prosecutor considering whether to pursue the case against one or both of the McCloskeys might see this as a reason to drop the matter if it’s a close call.

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